Com. v. Johnson, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
AQUIL JOHNSON
Appellant No. 3497 EDA 2017
Appeal from the PCRA Order Entered September 28, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: MC-51-MD0000127-2013
BEFORE: STABILE, MURRAY, JJ., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY STABILE, J.: FILED JULY 17, 2019
Appellant, Aquil Johnson, appeals pro se from the September 28, 2017
order dismissing his petition pursuant to the Post Conviction Relief Act
("PCRA"), 42 Pa.C.S.A. §§ 9541-46. We reverse and remand.
During a January 25, 2013 voir dire proceeding at Appellant's trial for
attempted murder, aggravated assault, and conspiracy, Judge Chris R. Wogan
of the Philadelphia County Court of Common Pleas held Appellant in contempt
of court for disruptive behavior. The trial court imposed three to six months
of incarceration for contempt. The official docket reflects a motion for
contempt, a finding of contempt, and a sentence imposed all on January 8,
2013. Subsequently, at the March 15, 2013 sentencing in the attempted
murder case, which proceeded under a separate criminal docket number, the
trial court vacated the contempt convictions and indicated that it would not
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impose any sentence for contempt. The certified docket for the instant matter
does not reflect that the trial court vacated the sentence.
Appellant did not file a direct appeal of the contempt sentence. A
postage order indicates that Appellant mailed a timely first PCRA petition on
January 2, 2014.1 According to the PCRA court's opinion, authored by Judge
Sean F. Kennedy of the Philadelphia Court of Common Pleas, Appellant's
original petition was mishandled by the court system. PCRA Court Opinion,
8/15/18, at 2. Appellant therefore refiled the petition on June 30, 2014, after
the PCRA's one-year deadline expired. The certified docket reflects that
Appellant filed his PCRA petition on that date. Given the PCRA court's finding
that Appellant's original petition was mishandled, we conclude Appellant
timely filed his petition on January 2, 2014 pursuant to the prisoner mailbox
rule. See Commonwealth v. .7ohnson, 192 A.3d 1149, 1151 n.4 (Pa. Super.
2018) (noting that a document from a pro se prisoner is deemed filed on the
day he gives it to prison authorities for mailing), appeal denied, 200 A.3d
440 (Pa. 2019).
Appellant's pro se brief to this Court, while difficult to follow, addresses
the timeliness of his petition, the propriety of the trial court's finding of
contempt, the legality of the contempt sentence, and Judge Wogan's alleged
1 A petitioner must file a PCRA petition within one year of the date on which
the judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1).
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bias against Appellant. Judge Kennedy explains in his opinion that he denied
relief because Judge Wogan eventually vacated the contempt sentence. PCRA
Court Opinion, at 5. Thus, Judge Kennedy believed Appellant already received
the relief he is seeking. The Commonwealth acknowledges that Judge Wogan
intended to vacate the contempt sentence at issue, but notes that the certified
docket does not reflect an order to that effect. The Commonwealth does not
oppose a remand for that purpose. Given the agreement among the parties
and the PCRA court that the instant contempt sentence should be vacated, we
will remand for entry and docketing of an appropriate order.2 Given our
disposition, we need not analyze the merits of Appellant's arguments.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Jseph D. Seletyn,
Prothonotary
Date: 7/17/19
2 It is not clear that Judge Wogan had jurisdiction to vacate the January 8,
2013 contempt sentence at the March 15, 2013 criminal sentencing, as more
than thirty days elapsed in the interim. See 42 Pa.C.S.A. § 5505 ("Except as
otherwise provided or prescribed by law, a court upon notice to the parties
may modify or rescind any order within 30 days after its entry,
notwithstanding the prior termination of any term of court, if no appeal from
such order has been taken or allowed."). Appellant's timely PCRA petition,
however, gives this Court jurisdiction to remand for entry of an order in accord
with Judge Wogan's stated intent.
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